Should incest be legal?

TOBY GOODMAN puts forward the case for the legalisation of incest.

Incest – the sexual contact between two individuals who are biologically related – has long been one of mankind’s greatest taboos. It is one of the few sexual perversions that is rallied against in practically every society in history, due mainly to an ingrained biological disgust. It is currently classified as illegal in the UK in the Sexual Offences Act 2003, where the penalties include imprisonment for up to 2 years and/or a fine. However, it is time that its legal position is re-evaluated. Incest’s prohibition constitutes an unjustified restraint on individual sexual autonomy, and the legalisation of incestuous sexual activity should be considered the next great sexual hurdle that society must overcome.

Before beginning, the parameters of the prohibition must be described. Firstly, we should note that rape, paedophilia and grooming are all separate sexual offences per se. If a father rapes his 3-year-old daughter, he would be guilty of rape and paedophilia regardless of his relationship with the victim. Incest’s prohibition, then, must apply only to those situations where there is consensual, adult sexual activity. This is contrary to the principles of UK sexual offense law – there is no other situation, now that we as a society have overcome our perceived disgust with homosexuality, where two adults can be restricted from having consensual sex.

The argument that could then be brought forward, once this has been established, is that incestuous procreation is likely to lead to mentally or physically disabled offspring. This is factually accurate: in 2002, the National Society of Genetic Counsellors wrote a review of research into incestuous procreation and found that over half of the children (54%) were affected in some way. To put this into perspective, major birth defects affect only 3% of newborns conceived between non-familial parents.

However, to justify incest’s illegality on these grounds is flawed in a number of ways. To start with, only procreational sex (unprotected, vaginal) could be legally limited. If no child is conceived, there can be no crime. Homosexual incest, then, must surely be permitted, as must oral and anal sex, both specifically addressed and forbidden in the law. If this is why incest is illegal, then the current overbearing legislation must be dispensed with. But, even if this is the reason, it is inconsistent with other areas of English law.

If incest’s illegality is based on concern for the wellbeing of potential offspring, then logically it must follow that the stance being taken by our legislature is that it is wrong to conceive a child who is at risk of being born with some kind of disability. It is always wrong, the Act’s drafters would be saying, to subject another to a life of such hardship. But this is not the case: as individuals with hereditary diseases are allowed to reproduce with no legal repercussions. There would be a public outcry if the government announced that individuals suffering from haemophilia, a severe hereditary disease that also has a 50% chance of being passed onto carriers’ offspring, were to be legally restrained from having children (or, to take the analogy as far as incest’s legal position, from having any form of sexual contact with another at all). It would be considered a gross restriction of sexual autonomy. This purported fear for the wellbeing of offspring does not make practical or logical sense as a justification for incest’s illegality.

We cannot say that incest is rationally illegal unless we also say we do not want people to be born with disabilities, and so those with hereditary diseases must also be forbidden from having children. This is not something any civilised society would ever do. We are thus forced to concede that it is only illegal because of its ‘taboo’ nature – because of the ‘yuck’ factor. Because of an ingrained feeling of disgust towards the idea of incestuous activity that the majority of society seems to share, certain individuals’ sexual autonomy is being infringed.

There are two competing ideals that need to be analysed here: the legitimate illegality of conduct that society views as injurious and the principle of sexual autonomy. Although they are two entirely distinct things that should not be conflated, it should not be difficult to see the parallels between how incestuous activity is viewed now and how homosexual activity was viewed in the not-too-distant past: both viewed with disgust by the majority of society, even seen as unnatural and perverted.

With the legalisation of homosexuality, courts were forced to confront how an activity that was fundamentally harmless, as discrete sex between consenting adults is, could be limited by public feelings of disgust. The Wolfenden Report, published in 1957, was a governmental report that addressed these issues. While acknowledging that it was the law’s responsibility to prevent that conduct which was ‘offensive or injurious’, the Report stated that, ‘it is not… the function of the law to intervene in the private life of citizens, or to seek to enforce any particular pattern of behaviour.’ This is now the approach taken in UK courts to homosexuality, and society has (by and large) also overcome its aversion to it.

It was acknowledged then that while the conduct was considered ‘offensive’, the sexual autonomy of individuals is now a more important right to legally protect than the general feelings of the public. Thus to deny that consensual adult incest should be legal on the ground that ‘many people view it as disgusting’ is to deny the substantive reality of the direction in which the legal climate has developed.

There is no coherent reason for incest’s illegality. It is not harmful in any conventional sense of the word, given it necessarily applies only to consensual, adult sexual activity, and the danger of genetically compromised offspring being conceived is not sufficient justification. Explaining an act’s illegality purely on the basis of societal feelings of ‘disgust’ is no longer justified in a legal climate where any restriction of individual autonomy requires convincing rational reasoning. I therefore urge the legislature and the judiciary to readdress this issue in the continuing battle of respect for universal sexual autonomy.